The ICC’s Chickens Come Home to Roost

by Kevin Jon Heller

At Justice in Conflict, Mark Kersten calls attention to a recent motion filed by the Libyan government asking for more time — read: stalling — to reply to the OPCD’s response to its admissibility challenge. The government doesn’t actually want a deadline to respond; it would like to have 18 days from whenever it gets around to appointing a new Ministry of Justice team (para. 14). That request in itself is a mockery of the ICC’s rules for filing motions and responses, but what is particularly chilling about the motion is the way that it attempts to use the Libyan government’s illegal detention of Melinda Taylor and her team as grounds for removing the OPCD from the case. I can’t cut-and-paste the relevant paragraphs — thanks, Registry! — so I’ll summarize them:

8. This paragraph points out that Taylor and her team were detained because the Libyan government feels their actions threatened Libya’s national security. It also notes the ICC’s initial statement “deeply regretting” those actions.

9. This paragraph notes that the ICC promised to investigate the OPCD’s actions.

10. This paragraph complains that the ICC has not updated the Libyan government about the investigation and suggests that the OPCD should not be allowed to continue to represent Saif Gaddafi because “communications between the Libyan Government and the OPCD appear to have irretrievably broken down,” casting into doubt “the OPCD’s ability to properly and genuinely represent Mr Gaddafi’s views on the admissibility challenge.”

14b. This subparagraph asks for “an informed and open discussion” regarding “the propriety of the continued appointment of the OPCD as counsel.”

14d. This subparagraph asks for “a new timetable for the proceedings, which takes into account the possible need for new and independent counsel for Mr Gaddafi to take instructions on him on the issue of admissibility.”

The entire motion is positively Orwellian — an attempt to create a parallel universe in which the Libyan government didn’t repeatedly lie to the ICC, didn’t illegally detain four members of the OPCD, didn’t intentionally undermine Saif’s right to counsel, and didn’t lie to the Security Council about its actions. The motion also conveniently fails to mention, when expressing concern for Saif’s wishes on admissibility — how touching! — either Saif’s handwritten statement that leaves no doubt where he stands (the one that the Libyan government prevented him from signing and then confiscated) or the fact that the Libyan government has intentionally denied Saif’s right to domestic counsel for months. But really, the government just has Saif’s best interests at heart!

In the end, though, it’s difficult to get too upset at the Libyan government for filing the motion. It has already demonstrated, time and again, that it has nothing but contempt for the ICC. Sadly, the Court has no one but itself to blame for the Libyan government’s cynical attempts to manipulate it. As I have pointed out before, the Court’s willingness to apologize for the OPCD’s actions on the basis of lies fed to it by the Libyan government made this kind of motion inevitable. Even worse, by apologizing, the Court has provided every state it investigates with the perfect blueprint for getting rid of attorneys who will zealously represent their clients. All a government has to do is illegally detain the attorneys, lie about their actions, and then claim that the lack of communication between the two parties means that the attorneys have to be replaced.

The ICC needs to put a stop to the Libyan government’s unconscionable behavior — and it needs to put a stop to it now. It needs to deny the Libyan government’s motion, reaffirm that the OPCD will continue to represent Saif, and order Libya to file its reply to the OPCD’s response in a set amount of time — not when the government feels like it. And it needs to make clear to the Libyan government that it will be investigating its actions as well as the OPCD’s.

The ICC’s ability to function effectively in the future hangs in the balance.

2 Responses

Maybe this is a professional deformity from living with 5000 international commercial arbitration cases in the late 80’s and 90’s but nothing about these submissions surprises me. The Libyan government does not want Saif to have the counsel of his choice because of the state’s desire to control. This is true ICC work to be a true IGO and provide a fair process. All these maneuvers remind me of the US with the high value detainees – very heavy for an American to find himself saying this.

8.07.2012
at 4:21 pm EST Benjamin G Davis

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[…] "At Justice in Conflict, Mark Kersten calls attention to a recent motion filed by the Libyan government asking for more time — read: stalling — to reply to the OPCD’s response to its admissibility challenge. The government doesn’t actually want a deadline to respond; it would like to have 18 days from whenever it gets around to appointing a new Ministry of Justice team (para. 14). That request in itself is a mockery of the ICC’s rules for filing motions and responses, but what is particularly chilling about the motion is the way that it attempts to use the Libyan government’s illegal detention of Melinda Taylor and her team as grounds for removing the OPCD from the case. I can’t cut-and-paste the relevant paragraphs — thanks, Registry! — so I’ll summarize them: … " […]

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